SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 97783/2016
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
15 OCTOBER 2025
In the matter between:
MARCELLE VAN VUUREN Plaintiff
and
SOUTH AFRICAN NATIONAL ROADS
AGENCY LTD First Defendant
ROAD ACCIDENT FUND Second Defendant
WORLEY PARSONS RSA (PTY) LTD Third Defendant
PENNY FARTHING ENGINEERS SA (PTY) LTD Fourth Defendant
Summary: Delict- joint wrongdoers. Plaintiff was involved in a motor vehicle
accident in 2014. She claimed damages from the South African
National Roads Agency Limited (SANRAL), its engineers, its
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contractors and from the Road Accident Fund (RAF) as joint
wrongdoers. Found that there was no negligent breach of the
obligations to main tain a rural road and that the plaintiff and the
insured driver in terms of the Road Accident Fund Act 56 of 1996
had been contributory negligent. An equal apportionment of
liability ordered as between the plaintiff and thee insured driver.
Claims against other defendants dismissed and appropriate costs
orders made.
ORDER
1. It is declared that the Road Accident Fund is liable for 5 0% of the
plaintiff’s agreed or proven damages suffered as a result of the motor
vehicle collision which had occurred on 20 December 2014.
2. The Road Accident Fund is ordered to pay the plaintiff’s cost of the trial to
date hereof.
3. The plaintiff is ordered to pay the costs of the first and third defendants.
4. The plaintiff is ordered to pay the fourth defendant’s costs up to and
including 23 April 2025.
5. The first defendant is ordered to pay the fourth defendant’s costs incurred
from 24 April 2025.
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6. All costs shall be inclusive of the costs of senior and junior counsel, where
employed.
________________________________________________________________
J U D G M E N T
________________________________________________________________
The matter was heard in open court and the judgment was prepared and
authored by the j udge whose name is reflected herein and is handed down
electronically by circulation to the parties’ legal representatives by email and
by uploading it to the electronic file of this matter on Caselines. The date fo r
hand-down is deemed to be 15 October 2025.
DAVIS, J
Introduction
[1] On 20 December 2014, the plaintiff drove off the tarred portion of the road
between More beng and So ekmekaar. Upon her attempt at returning from the
gravel shoulder to the tarred surface, she lost control over her vehicle and
thereafter collided with an oncoming vehicle travelling on the opposite side of
the road. A passenger in each of the two vehicles lost their lives and the bodily
injuries sustained by the plaintiff resulted in the above knee amputation of both
her legs.
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[2] The plaintiff sued the first, second, third and fourth de fendants as joint
wrongdoers.
[3] In terms of Rule 33(4), the issues of merits, liability and any
apportionment thereof, were separated from the issues relating to quantum.
The parties
[4] The plaintiff instituted action as a natural person in her own name. She
was already a major at the time of the accident.
[5] The first defendant is the South African National Roads Agency Ltd
(SANRAL). The section of the road on which the accident occurred form part
of the national road network and SANRAL is responsible for the maintenance
thereof.
[6] The second defendant is the Road Accident Fund (the RAF). It is
statutorily liable for damages suffered in road accidents as a result of the
negligence of an insured driver.
[7] The third defendant is a civil engineering company Worley Parsons RSA
(Pty) Ltd (Worley Parsons) who has been contracted by SANRAL to oversee
the upkeep of some national roads, including the section of road where the
accident happened.
[8] The fourth defendant i s Penny Farthing Engineers SA (Pty) Ltd (Penny
Farthing), another engineering company, who had been contracted by SANRAL
to do the actual maintenance work on the section of the road in question.
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Shortly before the trial, on 23 April 2025, the plaintiff withdrew her claim
against Penny Farthing who then remained a party to the action, having been
joined thereto as a third party by SANRAL.
The plaintiff’s case
[9] The plaintiff’s principal contention was that, at the place where the two
left-hand wheels of her vehicle had left the tarred road, an “ edge-drop” existed.
This meant that the edge of the tarred surface was higher than the level of the
adjacent gravel shoulder. She contended that this height exceeded the
permissible height of 50 mm, causing her to lose control when she turned her
wheels to the right in an atte mpt to regain her line of travel on the tarred road.
This caused her vehicle to rotate to its right, into the opposite lane of travel,
where she collided with an oncoming vehicle.
[10] The plaintiff claimed that SANRAL, as the cust odian of the road, had
failed to comply with its statutory duties to provide a safe road and road
shoulder. She labelled the edge drop dangerous and claimed that it was allowed
to continue to exist without warning signs.
[11] The plaintiff had no recollection of any aspect of the collision and her
passenger at the time had tragically passed away on the scene.
[12] In summarizing the evidence put forward by the plaintiff, it is apposite to
start by setting the scene of the collision. This was done at the commencement
of the trial by the presentation of a video, taken by the attorney for SANRAL,
which displayed the route taken by the plaintiff, as seen from the perspective of
a driver, driving the same route. It depicted a tarred rural road leaving the town
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of Morebeng with one lane of traffic in each direction. After leaving town, the
road makes a gentle curve to the left, before it procee ds in a straight line and
with the permissible speed thereafter increasing from 60km/h to 80km/h.
[13] The plaintiff largely relied on the evidence of an accident reconstruction
expert, Mr Barry Grobblaar (Grobbel aar). This expert had met with the
reconstruction expert consulted by SANRAL, Mr Lötter (Lötter).
[14] Grobbelaar and Lötter had produced a joint minute of their findings and
opinions. It is apposite to refer to the contents of this joint minute as it assists
with both the summation and evaluation of further oral evidence. The salient
aspects of the agreement between the two experts (as adjusted by their
evidence) were the following:
- The plaintiff’s vehicle was out of control when the collision occurred
and had probably yawed clockwise, pointing generally at a right angle
across the lane of travel of the insured driver at the time of the
collision.
- The collision itself occurred in the lane of travel of the insured driver.
- The road width was approximately 3,6m in the plaintiff’s lane,
travelling towards Tzaneen and approximately 3,8m in the insured
driver’s lane, travelling in the direction of Morebeng.
- After leaving Morebeng, and as the pla intiff was approaching the
aforementioned curve to her left, there was a “yellow line section” of
tar in her lane of travel. This narrowed from 1,3m in the curve,
towards the end of the curve where its width was reduced to zero.
The curve ended approximately 44m prior to the area where the
collision occurred.
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- On the left -hand side of the plaintiff’s lane of travel, there was an
edge drop of anything between 170mm to 230mm, with a later
witness measuring it at 160mm.
- The left wheels of the plaintiff’s vehicle were probably on the gravel
shoulder of the road prior to it returning to the tarred surface of the
road.
- The pla intiff was driving a Suzuki Swift motor vehicle at the time,
with a ground clearance of 140mm in an unladen state.
- The underside of the Suzuki and/or its suspension would probably
have scraped along the edge of the tarred surface of the road on the
left edge thereof after the left wheels had dropped off the tarred
surface of the road on to the gravel shoulder. This would probably
have created an unstable situation on the dynamics of the Suzuki due
to the pressure normally exerted on the wheel/s on the left side being
relieved to a greater or lesser extent , depending on the height of the
edge drop -off, by the underside or suspension of the vehicle now
being supported by the edge of the tarred road.
- The experts agree d that the scr ape parks on the left edge of the tar
were probably caused by the Suzuki and indicate that the drop off was
larger than the ground clearance of the Suzuki.
- For the driver of the Suzuki st eering to the right to return to the tarred
road once the left wheels had gone off the road , the large step/rise
between the gravel shoulder and the edge of the tarred surface of the
road would initially have prohi bited the left front wheel from
“climbing” up the step to return to the tarred road, with it sliding
along this edge to a greater or lesser extent . This would either have
resulted in the driver steering further to the right due to the vehicle not
responding to the initial steering input to the right, which would
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probably have resulted, at some stage, in the left front wheel suddenly
“biting” and rising/driving on to the tarred road surface due to the
irregular nature of the edge of the tarred road or the left front tyre may
have in any event have suddenly “bit” into an irregular feature of the
edge drop, causing the vehicle to suddenly drive ont o the tarred road
surface. During this sudden driving and the rising of the wheel onto
the tarred road surface, the front of the vehicle would probably have
steered suddenly to the right due to the regained traction of the left
front wheel.
- Such a sudden steering of the vehicle to the right would probably
have initiated the clockwise yaw of the vehicle (with the rear of the
vehicle stepping out to the left), with loss of control resulting.
- The experts relied on photogr aphs taken of the collision at the time
and at various stages thereafter as well as visits to the scene indicating
tyre skid and yaw marks. They produced complicated calculations in
respect of estimated speeds and weights of the respective vehicles and
thereafter concluded and agreed that, had the insured driver been
travelling at the speed limit of 60km/h or slower, he would have had
almost twice as long to have avoided the collision then what he had
available at the speed at which he was travelling. He w ould also
probably have been able to bring his vehicle to a stop at almost ¼ of
the distance at 60km/h than that which would have been required at
approximately double this speed.
- It is therefore probable that the collision could have been avoided had
the Toyota driver been travelling at the speed limit of 60km/h inst ead
of in excess of 112km/h on approach to the accident scene, which was
the agreed estimated speed deduced from the distance of travel post -
collision to where the Toyota eventually ended up.
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[15] I shall deal with the points of disagreement between the experts when
evaluating the evidence later.
[16] The plaintiff also relied on another expert, Mr Willie du Pre ez (Du
Preez). Du Pree z is a registered civil road construction engineer. His evidence
was, broadly speaking, the following: The shoulder of a road is supposed to be a
safe recovery area for errant vehicles. Although Du Preez did not know when
the edge drop had developed prior to the accident , he opined that due to furrows
in the shoulder, which were probably caused by rain, he did not regard the
shoulder as a safe recovery area, and it appeared not to have been maintained
for weeks prior to the accident.
[17] Du Preez could not fault SANRAL for having appointed a supervisi ng
engineer and a maintenance contractor to perform the maintenance work
because it is standard practice worldwide in the industry. He contended,
however, that the size of the maintenance contract was such that it should have
been split into separate contracts or tenders . This was only his opinion, and he
had no evidence to back up or confirm whether this had been feasible or not.
[18] In cross-examination Du Preez conceded that he could not say how long
before December 20 14 the last road repair had been done. He concede d that
depending on the material used for the shoulder, it can indeed erode within a
few weeks. He also conceded that the prioritisation prescribed by the engineer
was not necessarily incorrectly done. He also could not dispute that there was a
previous contractor involved, or that the shoulders were done by a previous
contractor. Du Preez conceded that the roads in South Africa are generally in a
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dire state. He conceded that the engineer can decide where to work first, and if
it was considered that the R81 for example was more serious, or being exposed
to higher rainfall, then that would be a reasonable exercise of the engineer’s
discretion if maintenance efforts were directed thereto.
[19] Du Preez conceded that had the Plaintiff not gone off the road, there
would have been no loss of control but contended that the route patrol should
have picked up the difference between the shoulders, and it should have been
repaired. The engineer should have requested funds and SANRAL should have
authorised a temporary repair. Gravel should have been dumped, graded with a
grader and then compacted with a roller. Despite this contention, Du Preez
conceded that according to industry standard recommendations, the edge drop
should be repaired within 6 months.
SANRAL’s case
[20] SANRAL relied on two witnesses. The first was Lötter, who was the co -
author of the joint expert report together with the plaintiff’s expert, Grobbelaar.
[21] The only aspects upon which Lötter disagreed with Grob belaar were
noted in paragraph 3 of their joint minute. These were the following:
- Lötter was of the opinion that a height differential (edge drop)
between the shoulder of the road and the tarred surface of 160mm
would have a reduced effect compared to a step height of 170mm to
230mm and the lesser edge drop could be countered with relative
ease by steering slightly more to the left, away from the step which
is formed by the edge drop.
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- Lötter was of the opinion that, even in the absence of edge drop, it
remains possible that the Suzuki driver would in any event have lost
control after her vehicle's left wheels had left the paved road surface
on to the gravel shoulder due to the different traction of the left and
right wheels, and her steering input which could have initiated a
clockwise yaw when she re-entered the road.
- Lötter was of the opinion that the instrument cluster may give an
indication of the wheel speed of the vehicle, but this does not
necessarily translate to the actual road speed of the vehicle at the
time of the impact. If the court however accepts this higher value for
the speed of the Suzuki to be applicable, then the speed of the
Toyota would also have been higher.
- Lötter was of the opinion that it was evident from the accident scene,
that when a driver in the position of the plaintiff was travelling at
60km/h, while keeping a proper lookout and being aware of one's
surroundings, this speed was of such a nature that it would have
been relatively easy to maintain control over a vehicle , even if it
went off the tarred surface to its left . In such a case, a driver c ould
merely slow down and travel slightly more to the left, which would
further prevent contact with the unde rside of the vehicle. The driver
can then move back on to the road at a lower speed a short distance
further where the edge-drop would not have been as much.
- Lötter was of the opinion that the plaintiff probably over-reacted and
immediately attempted to "swerve" back on to the road when
encountering the uneven surface.
[22] Mr Van Eyk (Van Eyk) was SANRAL’s second witness. He is a
qualified engineer and was the project manager on the specific project,
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representing SANRAL at all material times. He explained that, after a
procurement process, Worley Parsons was appointed as a supervisi ng engineer
in terms of a standard SANRAL contract. The procurement process included a
survey having been done by the engineer regarding the work to be done and a
bill of quantities.
[23] The contract was not a construction contract, but a maintenance contract.
It included various sections of road and was for an initial period of 36 months in
an amount of R92 million. It was later extended in time and for another R62
million.
[24] Having regard to the tender documents, Van E yk referenced the fact that,
of the various sections of road, the one between Modjadji’s Kloof and Mooke tsi
displayed road shoulders in “ a very bad condition”, while the relevant potion
between Mooketsi and Morebeng was indicated as being in a “fair c ondition”
and only in need of “isolated shoulder repairs”.
[25] The relevant portion of the road where the accident had occurred, namely
the R36 - 8, had previously been rebuilt and resurfaced. This included the
rebuilding of the shoulders. This was completed in December 2012 with a
retention period ending in December 2013. The contractors were Vela KE and
the supervising engineer was KPPM.
[26] After the appointment of Worley Parsons, as supervising engineer to see
to post -construction maintenance, SANRAL retained an oversight role. This
would in practice be done by Van Eyk by way of the regular and monthly site
meetings and by actually driving sections of the road. The site meetings were
13
held at different sections of the road, which were then also visited and
inspected. Van Eyk, who is based in Pretoria, would often sleep over when
attending these site meetings and take different routes to ensure that various
portion of the road were inspected and assessed.
[27] The maintenance contract spanned over and included the R36, R40, R71,
R81 and R528 roads with the total distance being 465 km.
[28] Van Eyk was tediously taken through numerous contractual clauses
which dealt with the scope of work, the standards to be adhered to and the
duties of the supervisi ng engineer. Last-mentioned included the nomination of
a contractor, the appointment of “site staff’, the conducting of monthly site
meetings, the issuing of instructions to ensure compliance with the maintenance
contract and the identification and scheduling of work to be performed,
including the determination of the priorities of work to be done.
[29] Regarding the work to be done, the engineer had to assess, after
inspection, which section of the various roads had to undergo maintenance or
repair work in a particular month. This included various aspects relating to the
road itself, such as culvert clearing and repair, maintenance of drainage systems,
grass cutting, signage and the like.
[30] Van Eyk testified that the contractor nominated by Worley Parsons, being
Penny Farthing, was one of the “top three” maintenance contractors in the
country, who had always rendered excellent work and employed competent
personnel.
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[31] According to Van Eyk, SANRAL had complied with its statutory
obligations by having appointed a duly qualified international engineering fi rm
to supervise the maintenance of the roads in question.
Worley Parson’s case
[32] Worley Parsons called a person who had been directly involved in the
road maintenance contract in question, being another engineer, Mr Marius Nel
(Nel). He was the route manager on the project.
[33] Nel was familiar with the roads and the state thereof as he was the
assistant of the previous route manager, Mr Grundlingh.
[34] As to the nature of the work, Nel explained that as opposed to a
construction contract, a maintenance contract is never- ending or continuous
process.
[35] Regarding the issue of prioritizing maintenance work on various parts of
the road, Nel explained that, working around a budget, prioritizing of work in a
particular month, is based on issues of severity and road safety. So, for
example, if there is damage to the actual surface of a road, it will receive
priority over aspects outside the actual surface. Working from the center line of
a road, which enjoys the highest priority, the urgency of the work to be done
decreases as one moves to the “fence line”.
[36] Determination of urgency and prioritization is dependent on visual
inspections, which are in turn carried out by rout e patrols. Route patrols are
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performed three times a week on all routes. In addition, the site agent also
patrols the route once a week. If one has to stop at all the “hot spots” identified
during such an inspection, it could take up to two weeks to do a proper
inspection.
[37] It appears that a different road to the one where the accident happened
was in need of maintenance at the time. That road was the R81. Nel was asked
about his impression of that road and its topography. He described that the R81
starts in Polokwane at the taxi rank. Then it proceeds through several villages,
where there is constant “pressure” on the road shoulder. At kilometre 62 the
road traverses a mountain pass, which is very steep. The re the shoulder slopes
and edge-drops of up to a metre occurred. In addition, the re were potholes and
edge breaks. Edge breaks de note instances whe re the actual road surface is
damaged and has broken up to where the edge of the tar should have been. An
edge-break is far more serious than an edge -drop as it encroaches onto the
surface where vehicles are supposed to travel.
[38] In compar ing the R36- 8 (where the accident had occurred and which
surface had fairly recently been reconstructed, including the reinstatement of the
road shoulders) with the R81 , the last mentioned was in a much worse
condition. Second to this was the R71, where there were also serious edge -
drops.
[39] Weather also plays a role in maintaining a road. During a large rainstorm
in that area, such as when 33mm rain can fall in an hour, corrugation and
damage to a road shoulder can occur. After rains have fallen, one cannot work
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on the shoulder for a while and that is why routine shoulder repairs are more
often done during the dry winter months.
[40] In order to do effective shoulder maintenance, the necessary equipment
has to be brought to site by a contractor. This typically would involve a grader,
a water truck, a roller and the importation of material if there is insufficient
material on site. Repair o r reinstatement of a shoulder requires the building up
of a shoulder by material and the compacting thereof by a roller to create a 3%
angle. If all the equipment is available and nearby, the process can start within
two days but otherwise it could take up to a week to bring all the equipment and
material on site.
[41] There were two capable sub -contractors on the route. Customarily the
engineer (Worley Parsons) would give instructions to the contractor (Penny
Farthing) who would then give instructions to the sub- contractor, in this case
BRDF Construction. During the December building hol idays, there would be
an emergency team of at least 6 people on duty.
Penny Farthing’s case
[42] Penny Farthing closed its case without calling a witness and relied on
legal argument and on the evidence produced by the other parties. I shall deal
with this during the evaluation of the evidence and the respective claims later.
The RAF
[43] Although the RAF was the second defendant, the calling of witnesses by
it was held over during the course of the trial, due to the unavailability of the
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insured driver, who was overseas. This did not prejudice the hearing of the trial
or the other parties as it was in any event convenient to deal with all engineering
and maintenance aspects together.
[44] In the end, the RAF did not call the insured driver and applied to have his
evidence accepted by way of a prior affidavit in terms of Rule 38(2). There was
no objection hereto by any of the other parties and the Rule 38(2) application
was granted.
[45] The affidavit of the insured driver, introduced into evidence in this
fashion, read as follows:
“Statement by Zainul Patel
1. I the undersigned, Zainul Patel, with Identity number 8 […]
residing at no […] A[…], T[…], do hereby state under oath
as follows:
2. The contents contained herein fall within my personal
knowledge and are both true and correct.
3. I confirm that on the 20th of December 2014 in the
afternoon, I was involved in a motor vehicle collision. At the
time I was driving Toyota Prado with registration number
C[…], which collided with a Suzuki with registration B […],
which at the time was driven by Marcelle Van Vuuren.
4. I confirm that I gave a warning statement to Sonti Patrick
Mahlatji where I indicated as follows:
4.1 On Saturday 2014.12.20 I was from Tzaneen to Louis
Trichardt (Makhado). On the very same day while I
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was approaching Morebeng (Soekmekaar), I saw the
opposite vehicle losing control. Then the driver of the
opposite vehicle tried to control motor vehicle then it
came into my lane and collided head on. I was then
transported to Makhado Hospital with private car for
further treatment. I sustained a fracture on my right
leg, small bruises on the face and the body.
Zainul Patel (Deponent)”.
[46] That concluded the evidence of the parties.
The law
[47] The plaintiff seeks to hold SANRAL and its engineers and contractors
liable in delict. The elements of such a claim are (1) actual conduct or
omission1; (2) wrongfulness; (3) fault; (4) causation and (5) that a harm was
suffered2. I shall refer to these elements more fully hereunder.
[48] Should the plaintiff fail to establish any one of these elements, her c laim
against those defendants mentioned above, cannot succeed3.
[49] Wrongfulness and the test for it has been described as being one based on
an objective evaluation of the legal convictions of the community, duly
informed by the values entrenched in the Constitution4.
1 For the explanation of conduct, see Steenberg v De Kaap Timber (Pty) Ltd 1992 (1) SA 337 (A).
2 MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 75 (SCA).
3 Minister of Safety and Securing v Van Duivenboden 2002 (6) SA 431 (SCA) and Greenfield Engineering Works
(Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N).
4 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
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[50] In claims of this nature, the elements of fault relied on is often in the
form of negligence. The interplay between the elements of fault and negligence
must not be confused with each other or conflated.
[51] Negligence and the test for it, involves a threefold enquiry namely (1)
whether the eventuated harm was reasonably foreseeable; (2) whether the
diligens paterfamilias would have taken reasonable care to guard against such
harm and (3) whether the defendant in question has failed to take the necessary
care
5.
[52] The inquiry in respect of causation, is a factual one, often employing the
“but-for” test, meaning posing the question of what would have happened, “but-
for” the wrongful conduct of the defendant6.
[53] To the above matrix must be added the general rule that a principal is not
liable for the civil wrongs committed by an independent contractor
7. This
general rule is qualified by instances where the principal is independently
personally liable or where the principal might have been negligent in its choice
of contractor or interfered with the actions of the contractor8.
[54] Another principle which may find application in this matter is that a court
would not lightly find a public authority to have failed to act reasonably because
5 Butise v City of Johannesburg 2011 (6) SA 196 (GSJ).
6 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A).
7 Langley Fox Building Partnership (Pty) Ltd v Da Valence 1991 (1) SA 1 (AD ) and Chartaprops 16 (Pty) Ltd v
Silberman & Another 2009 (1) SA 265 (SCA).
8 Cenprop Real Estate (Pty) Ltd v Holtzhauzen 2023 (3) SA 54 (SCA).
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it elected to prioritise one demand on its possible limited resources above
another9.
[55] The plaintiff’s alternate and/or joint claim against the RAF, was based on
the statutory provisions of the Road Accident Fund Act (the Act) 10 namely that
the plaintiff had suffered loss or damages as a result of the negligent driving of
an insured driver who had caused a motor vehicle accident11.
Evaluation of evidence and application of the law
The plaintiff
[56] The plaintiff bears the onus in respect of all the elements of her causes of
action, as indicated above.
[57] The plaintiff could not, as already indicated, remember anything about
the accident herself. She remember ed that she had attended a family birthday
on a farm outside Musina on the day in question. She was driving back to
Tzaneen thereafter, with her sister’s best friend as a passenger. She vaguely
remembered leaving the farm, but nothing thereafter.
[58] All the documents completed after the accident, including accident
reports and insurance claim forms were completed by someone else, probably
her father, who had also passed away since, but not by herself. She cannot
remember having spoken to a Warrant Officer Nkwinikwa at the accident scene.
9 McIntosh v Premier, KwaZulu Natal 2008 (6) SA 1 (SCA).
10 56 of 1996.
11 Section 17(1) of the RAF Act.
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The inquest docket and a statement apparently taken from her in hosp ital, has
also since gone missing.
[59] The plaintiff was also quizzed about a video on which she appeared
sometime after the accident, apparently for promotional purposes of an
insurance company, on which she would have blamed the cause of the accident
on a motorcyclist who would have come from her left. This, she testified
however, was a speculat ive version which someone told her long after the
accident and not any true recollection. The experts have agreed that such a
version could not reasonably have been possible.
[60] When one has regard to the above and the report of Grobbelaar and
Lötter, it must be found that the plaintiff had left the tarred surface of the road
on her left and partially have moved her vehicle on to the gravel shoulder. This
must have happened shortly after she had negotiated the gentle left-hand curve
after having left the town of Morebeng. There is no evidence of any justifiable
reason why the plaintiff would have executed this manoeuvre . Had she
maintained a proper look out and control of her ve hicle, this would not have
happened.
[61] What caused the plaintiff to thereafter move into the lane of oncoming
traffic, was that the plaintiff had swerved to her right, back onto the tar after her
vehicle had “bottomed out” on the edge of the tar. She had don e so at a speed
and in a manner that when the left front wheel of her vehicle “bit” onto the tar
to negotiate the edge- drop, the vehicle spun or yawed to it s right, into the lane
of travel of an oncoming Toyota Prado, causing the two vehicles to collide.
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[62] I find, on a balance of probabilities, that the plaintiff had been negligent
in having left the road and in the manner in which she ha d returned to it. She
was negligent in having, as a result thereof, lost control over her vehicle.
SANRAL
[63] The plaintiff’s claim against SANRAL is that SANRAL, as custodian of
the road in question, had failed to comply with its statutory duties ow ed to road
users such as the plaintiff , to provide a sa fe road shoulder for the recovery of
her vehicle when she had inadvertently left the road i n the fashion described
above.
[64] SANRAL’s defence is that it had neither acted wrongfully n or
negligently. Although it must be found that there had been an edge -drop of
about 140 mm between the tarred surface of the road and the left -hand shoulder
for some metres before the scene of the accident , there is no direct evidence as
to when the edge-drop of this height had occurred and for how long it had
endured prior to the date of the accident. There was some evidence that Van
Eyk and a Mr Römer of Worley Parsons may have identified an edge -drop near
the accident scene of an undermined heights, somewhere in August 2014. The
evidence in this regard was, however, too inconclusive to have any findings
based on it.
[65] SANRAL contends that it, as road custodian, had taken reasonable and
lawful steps to prevent such edge -drops, including the one in question, and to
prevent such edge drops from remaining unattended, whenever they occurred,
be it due to rain, road deterioration or otherwise. The steps taken were the
23
appointment of a competent supervisi ng engineer to supervise the
implementation of a maintenance contract. In addition, at the nomination of the
engineer, a competent contractor had been appointed. The work of the engineer
and the contractor (and sub- contractor) were overseen by a route manager,
being a qualified engineer in the employ of SANRAL. This was all done in
terms of section 26 of the SANRAL Act 12. I find that there was nothing
unlawful on the part of SANRAL in having acted in this fashion.
[66] Was there any negligent conduct on the part of SANRAL which would or
could otherwise make it liable?
[67] All the engineers who had testified, referred to publications produced by
a Dr Roodt regarding road safety, maintenance of roads and the industry
standards relating thereto.
[68] There is no evidence that the shoulder at this spot was identified
specifically as hazardous or a “ hotspot”, and the reasonable standard in the
industry, according to Dr Roodt for the inspection frequency for an edge -drop,
is twice a year, typically in the beginning and at the end of the wet season when
erosion occurs. The action time proposed for repairs to edge -drops is six
months, as edge -drop repairs are best repaired by a dedicated team with the
necessary equipment for planning needs to be done on a network basis.
[69] Dr Roodt’s proposed reasonable standards in the industry were endorsed
by the plaintiff’s own expert, Du Preez as being authoritative. It thus means
12 7 of 1998.
24
that SANRAL’s prescriptions to its maintenance contractor and the engineer
that route patrols must be conducted three times a week and a statutory
inspection be done once a week, exceeded the reasonable norms in the industry
by far.
[70] The case is therefore to be distinguished on the facts from those in Mc
Intosh v Premier Kwa-Zulu Natal (supra) where the public authority responsible
for the maintenance of provincial roads had been found to be at least 40%
contributory negligent in respect of a resultant accident due to vast stretches of a
road with a large number of dangerous potholes in the road surface, which had
been left unattended for an extensive period of time.
[71] I therefore find that neither wrongful nor negligent conduct can be
ascribed to SANRAL . In the premises it cannot be held liable in delict for
having caused the accident.
Worley Parsons
[72] The plaintiff’s claim against Worley Parsons as alleged joint wrongdoer
was based on the assertion that it, as consulting and supervisi ng engineer, was
aware that the “proper, timeous and professional execution of [its ] contractual
duties and obligations … had a direct and indirect impact on the general safety
of road users … ”13 and that “ … its contractual obligations were intended to
impose upon it the obligation to fulfil the statutory and public obligations of
SANRAL …”14.
13 Par 6: 14.1 of the amended particulars of claim.
14 Par 8.21 of the amended particulars of claim.
25
[73] The plaintiff further pleaded that Worley Parsons had “ wilfully,
alternatively negligently and wrongfully breached its contractual obligations”15.
[74] The alleged instances of contractual breaches were pleaded in 22 different
sub-paragraphs in the plaintiff’s amended particulars of claim, ranging from
allegations of failing to appoint qualified staff to a failure to develop o r
implement a “ … supervision methodology to timeously identify problems such
as the hazard on the road” to an alleged failure to seek specialist assistance.
[75] The plaintiff’s complaint is that the edge -drop in question should have
been detected and repaired earlier, in any event, prior to the accident. While it
is so that the edge-drop at the accident scene did not feature as an individually
described item in the monthly site meetings, which in turn, were reliant on the
route patrol observations, it was a known feature of the road.
[76] The plaintiff’s case is that, once the edge- drop had been or should have
come to the knowledge of Worley Parsons, it should immediately have repaired
it, is in conflict with the evidence.
[77] The evidence is that the maintenance contract span s across a period of
time and includes maintenance work over 465 kilometres. The evidence is
further that, over this distance there were various instances of far worse edge
drops and many instances with a far higher risk and danger, requiring
immediate or more urgent maintenance than the edge drop in question.
15 Par 11 of the amended particulars of claim.
26
[78] Both the evidence and the terms of SANRAL’s contract with Worley
Parsons, have established that the prioritization of which work to perform first
or which aspect of any road has to be prioritised over any other, fall within the
discretion of the supervising engineer.
[79] When one has regard to aspects such as timing, practicalities, resources
on monthly budget amounts, there is no evidence that Worley Parsons had not
exercised its discretion as professional engineer in any negligent or unlawful
fashion, let alone in a fashion which amounted to a breach of its contractual
obligations.
[80] Without entering into the debate about the elevation of contractual
breaches to delictual liability, I find that Worley Parsons had not committed any
such breaches. Its method of deploying engineers to monitor the road, to li aise
with the appointed contractor and to monitor the state of the roads which it had
to maintain on a regular basis, did not amount to any breaches of contract.
Penny Farthing
[81] As already indicated, Penny Farthing was joined as a party due to
SANRAL having issued a third- party notice to Penny Farthing, claiming
indemnification of or a contribution to any successful claim of the plaintiff
against SANRAL.
[82] Subsequent to the plaintiff’s withdrawal of her action against Penny
Farthing on 23 April 2025, SANRAL sought to amend its third- party notice on
27
24 April 2025, pleading the incorporation of a tacit term into Penny Farthing’s
maintenance contract with SANRAL.
[83] In the third-party notice, SANRAL alleged that Penny Farthing, not only
had the duty to inspect the road in question and to identify potential hazards, but
had to report those hazards to Worley Parsons and then form part of the
decision-making process to prioritise the repair of potentially hazardous spots
which require immediate attention . (The underlined portion indicates the
alleged tacit term to be incorporated). The amended third -party notice went
further to suggest that Penny Farthing was required to advise Worley Parsons
and SANRAL on the correct prioritisation of maintenance work and to request
hoc instructions.
[84] Penny Farthing initially objected to this belated amendment but, in order
to finalise the trial, withdrew its objection, subject to a reservation of rights.
[85] Penny Farthing’s case, which was supported by the express terms of its
written maintenance contract, was that it had been contracted to provide routine
road maintenance services, which included routine petrol services, inspection of
the road, edge build- up removals, repairs of potholes, edge -breaks and surface
failures, shoulder repairs, road marking and repairing of damaged roads.
However, the timing, frequency and sequence of the provision of any of these
services were not determined by Penny Farthing, but by Worley Parsons, acting
as SANRAL’s duly authorized agent.
[86] In this regard, clause C3.1.9.3 of the Maintenance Contract Specifically
provides as follows: “Generally the maintenances activities covered by the
28
Maintenance Contract will be on a continuous basis. However, certain specific
activities are considered to be a priority or are critical and it is a condition of
the contract that they shall be completed or responde d to as specified, after
receiving an instruction from the Engineer … ” (the reference to an engineer is
of course, a reference to Worley Parsons).
[87] The instructions from Worley Parsons to Penny Farthing were issued in
the form of job instructions, pursuant to which Penny F arthing became obliged
to perfor m the work specified in the instructions . Penny Farthing had not
received any job instruction in respect of the section of the road where the
accident had occurred.
[88] Even though SANRAL’s engineer, Van Eyk has testified as to the good
working relationship between the parties’ various employees, particularly on
site, he conceded that it was not Penny Farthing’ s obligation to make a
determination of the works or the frequency or priority thereof. These were
Worley Parsons’ obligations. Worley Parsons’ route manager, Nel, has
confirmed this in his evidence.
[89] SANRAL’s third-party claim against Penny Farthing, both as original ly
pleaded and as later amended to include reliance on an alleged tacit term, was
therefore at all times unsustainable.
The RAF
29
[90] The plaintiff sued all the defendants as joint wrongdoers as envisaged in
the Apportionment of Damages Act16.
[91] In respect of the RAF, in addition to the various alternative formulations
upon which the plaintiff claimed liability on behalf of the other defendants, the
plaintiff pleaded that the accident was caused “ … solely by the acts and/or
omissions of the insured driver …”.
[92] The acts and/or omissions ascribed to the insured driver were that he had
failed to keep a proper lookout, drove at an excessive speed in the prevailing
circumstances, failed to apply his brakes timeously, sufficiently or at all and had
failed to avoid the accident when, by the exercise of reasonable skill, care and
diligence, he could and should have done so.
[93] Of these various alternati ves, only the excessive speed and failure to
apply brakes had been proven on a balance of probabilities. The application of
brakes would however only have assisted in the avoidance of the accident if the
insured driver had not been travelling in excess of the prescribed maximum
speed.
[94] On a conspectus of the evidence, but in particular, the application of the
findings of the experts contained in the joint minutes Grobbelaar and Lötter,
read with the insured driver’s own statement, he had negligently contributed to
the accident having taken place.
16 34 of 1956.
30
Apportionment
[95] Having found that the only two parties who could be held liable for the
causing of the accident, were the plaintiff and the insured driver, it is now
necessary to consider the degree of apportionment between these two parties.
[96] The parties to this action have provided useful case law in this regard, and
the facts and contentions in three of the cases display surprising similarity to
that of the plaintiff’s case. I shall briefly deal with the judgments which were of
assistance.
[97] In Botes v MEC Western Cape Department of Transport and Public
Works17, the plaintiff alleged that his vehicle had veered off the left-hand side of
the road and that the edge -drop to the shoulder had caused him to swing across
the road when he managed to regain the tarmac. Relying on evidence gleaned
from the docket, it was found, however that the accident had occurred when the
plaintiff had overshot an upcoming curve to his left . He then went onto the
incorrect side of the road and when his right -hand wheels left the tarmac, t he
plaintiff lost control when he swerved back onto the road from the right -hand
shoulder and that is when he left the road on his left -hand side, causing the
vehicle to overturn and cartwheel.
[98] Rogers J (as he then was) dealt with the plaintiff’s negligence as
follows18: “In my view, a reasonable driver, after realizing he had negligently
strayed off the road onto the right shoulder, would have taken his foot of the
accelerator and slowed down in order to gain complete control of his vehicle.
17 (21774/2014) [2020] ZAWCHC 147 (6 November 2020).
18 Id at para 33.
31
A gr avel shoulder is not intended to be driven on at the same speed as the
tarmac surface. The friction differential between the tarmac surface and the
shoulder adds a further complication. While sharp braking would have been
inadvisable with the right wheels on the gravel shoulder, gently braking to slow
the vehicle down would have been prudent …”. This finding ties in neatly with
the opinion of Lötter as referred to earlier in the second- last bullet point in par
[21] above.
[99] On the facts of that case, Rogers J found that the provincial a uthority had
not been negligent in prioritising maintenance work on potholes and that a
driver had to keep a proper lookout a nd take into account the different levels
between the tarmac and the r oad shoulder. The plaintiff’s claim was refused on
the basis that he was solely to blame for the accident.
[100] In Van der Merwe v MEC for Public Works, Road an d Transport, Free
State and another 19, the provincial authority was found to be negligent in
concentrating almost exclusively on pothole -repair and neglecting a specific
section of a road for more than four years. This caused edge -breaks to develop
of between 150mm – 300mm. When the plaintiff was overtaken by another
vehicle, she moved to her left and the edge -breaks caused her to leave the
tarmac. A four- year old edge -drop then prevented her from returning to the
road surface, causing an accident on the left -hand side of the road. The
defendant was found to have been negligent and 100% liable for the plaintiff’s
damages.
19 (4617/2010) ZAFSHC 6 (28 February 2019). The same consequence followed a decade -long neglect by the
same provincial authority in MEC for Public Works, Roads and Transport, Free State v Esterhuizen 2007 (1) 201
(SCA).
32
[101] In the circumstances of this case however, where it has been found that
SANRAL, Worley Parsons and Penny Farthing are not liable , the cases
ascribing liability to those who had the obligation to maintain roads, are
distinguishable on the facts and not applicable.
[102] Section1(1)(a) of the Apportionment of Damages Act enjoins a court to
reduce damages suffered by a plaintiff “… to such extent as the court may deem
just and equitable ”, having regard to the degree to which the plaintiff is found
to also having been at fault.
[103] The locus classicus in this regard is South British Insurance Co Ltd v
Smit20 wherein the principle, which has often been confirmed since, has been
formulated as follows: “From the very nature of the enquiry, apportionment of
damages imports a considerable measure of individual judgment: the
assessment of ‘the degree in which the claimant was at fault in relation to the
damage’ is necessarily a matter upon which opinions may vary. In the words of
Lord Wright in British Fame (Owners) v MacGr egor (Owners) [1943] (1)
A.E.R. 33 at 35 (a maritime case; but the principle appears to be equally
followed in England in relation to the Contributory Negligence Act): ‘It is a
question of the degree of fault, depending on a trained and expert judgment
considering all the circumstances, and it is different in essence from a mere
finding of fact in the ordinary sense. It is a question, not of principle, but of
proportion, of balance and relative emphasis, and of weighing different
considerations. It involves an individual choice or discretion, as to which there
may well be difference of opinion by different minds’”.
20 1962 (3) SA 826 (A) at 837F - 837H.
33
[104] If one were to apply the “but for” test referred to in par [55] above, I find
the position to be as follows: had the plaintiff not veered off the road to her left
and had she not attempted to return thereto in the fashion that she did (as
opposed to the fashion described by Rogers J as quoted in par [ 98] above) then
the accident would not have happened. By the same token, had the insured
driver not been driving at the speed the experts had determined, he could have
applied the brakes in time and could have avoided the accident.
[105] I find that both drivers, through their respective negligent conduct had
contributed to the accident, in equal measure.
Conclusion
[106] To sum up: I find that, on a balance of probabilities SANRAL not to be
liable for the damages suffered by the plaintiff because, as a reasonable
custodian of the road in question, it had appointed a competent engineer to
supervise the maintenance of the road and has appointed an equally competent
contractor to do the actual maintenance work. It had further not ab dicated its
responsibilities, but one of its own road engineers exercised a monitoring
function. Neither the engineer, Worley Parsons nor the contractor, Penny
Farthing had breached the terms of their respective contracts or the acceptable
industry standards. None of these parties can be found to have acted
negligently, that is in a fashion or manner other than one would have expected
engineers and contractors to act in the circumstances. On the other hand, both
the plaintiff and the insured driver had acted negligently and, in my view,
equally so.
34
Costs
[107] I find that costs should follow the respective successes. The plaintiff is
substantially successful in her claim against the RAF . SANRAL and Worley
Parsons are successful in their defences. As for the costs of Penny Farthing, the
plaintiff should be liable for the costs of her withdrawn claim up to the date of
withdrawal. That is also the customary position. Thereafter, the party who
caused Penny Farthing to remain bound to the matter, but having done so on an
unsustainable basis, should be liable for Penny Farthing’s further costs.
Order
[108] In the premises, the following order is made:
1. It is declared that the Road Accident Fund is liable for 50% of the
plaintiff’s agreed or proven damages suffered as a result of the motor
vehicle collision which had occurred on 20 December 2014.
2. The Road Accident Fund is ordered to pay the plaintiff’s costs of the
trial to date thereof.
3. The plaintiff is ordered to pay the costs of the first and third
defendants.
4. The plaintiff is ordered to pay the fourth defendant’s costs up to and
including 23 April 2025.
5. The first defendant is ordered to pay the fourth defendant’s costs
incurred from 24 April 2025.
35
6. All costs shall be inclusive of the costs of senior and junior counsel,
where employed.
___________________________
N DAVIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of Hearing: 29 & 30 May, 3 and 5 June 2025
Judgment delivered: 15 October 2025
APPEARANCES:
For the Plaintiff: Adv W P de Waal SC
Attorney for the Plaintiff: Adams & Adams Attorneys,
Pretoria
For the First Defendant: Adv D Mills SC
Attorney for the First Defendant: Prinsloos Attorney, Pretoria
For the Second Defendant: Mr T Mukasi & Mr M Sekgotha
Attorney for the Second Defendant: State Attorney, Pretoria
For the Third Defendant: Adv C Eloff SC
Attorney for the Third Defendant: Werksmans Attorney, Cape Town
36
c/o Tiaan Smuts Attorney, Pretoria
For the Fourth Defendant: Adv J Babamia SC together with
Adv R Carvalheire
Attorney for the Fourth Defendant: Norton Rose Fulbright South
Africa, Johannesburg
c/o Macintosh Cross &
Farquharson, Pretoria